Managing Committee, SRIGANGANAGAR V. ACIT, SRIGANGANAGAR

ITA 398/JODH/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70361 (ITAT-JODHPUR)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-12-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 25-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: R N JANGIR
• Keywords: Search and seizure; Opportunity of being heard
• Section: 148

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 398 & 399/JODH/2011 (A.Y. 2003-04 & 2004-05) MANAGING COMMITTEE VS. THE A.C .I.T. SGN KHALSA COLLEGE & CIRCLE, SRIGANGANAGAR. SCHOOL, SRIGANGANAGAR. PAN NO. AAAAM7092D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.N. JANGIR DEPARTMENT BY : SHRI N.A. JOSHI, D.R. DATE OF HEARING : 09/12/2013. DATE OF PRONOUNCEMENT : 10/12/2013. O R D E R PER N.K.SAINI, A.M THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE SEPARATE ORDERS EACH DATED 29/9/2011 OF LD. CIT(A), BIKANER FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05. SINCE THE ISSUES INVOLVED IN T HESE APPEALS ARE SIMILAR HAVING IDENTICAL FACTS AND THE APPEALS WERE HEARD T OGETHER, SO THESE ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR TH E SAKE OF CONVENIENCE. 2 2. FIRST WE WILL DEAL WITH THE APPEAL IN I.T.A. NO. 398/JODH/2011 FOR THE ASSESSMENT YEAR 2003-04. THE ASSESSEE HAS RAISED AS MANY AS 10 GROUNDS OUT OF WHICH GROUND NOS. I TO III RELATES TO THE EX ERCISING OF JURISDICTION. THE ASSESSEE HAS ALSO RAISED ADDITIONAL GROUND, WHICH R EAD AS UNDER:- THE LEARNED ASSESSING OFFICER HAS ERRED IN LEVYIN G INTEREST U/S 234A OF THE I.T. ACT, 1961 FOR 85 MONTHS FROM NOVEM BER, 2003 TO NOVEMBER, 2010 WHEREAS NO INTEREST WAS CHARGEABLE, THE RETURN OF INCOME HAVING BEEN FILED WITHIN 30 DAYS OF RECEIPT OF NOTICE U/S 148 OF IT ACT, 1961 IN VIEW OF HON'BLE I.T.A.T., JODHPU RS DECISION IN I.T.A. NO. 425/JU/2009 DECIDED ON 25.07.2012. 3. AT THE FIRST INSTANCE, THE LEARNED COUNSEL FOR T HE ASSESSEE ARGUED ON THE ISSUE RELATING TO THE ACQUIRING OF JURISDICTION BY THE ASSESSING OFFICER. FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT THE ASSESSE E FILED THE RETURN OF INCOME ON 18/3/2010 DECLARING A NIL INCOME. THIS RETURN WAS F ILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S 148 OF THE I.T. ACT, 1961 (H EREINAFTER TO BE REFERRED AS THE ACT) ISSUED ON 17/2/2010, THE ASSESSING OFFICER FRAMED THE ASSESSMENT AT AN INCOME OF RS. 16,99,630/-. 4. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER HAV ING BEEN PASSED WITHOUT JURISDICTION AND SUBMITTED TO THE LD. CIT(A ) THAT AS PER JURISDICTION ORDER DATED 24/8/2001 INDICATING DISTRIBUTION OF WO RK, THE ACIT WAS CONFERRED JURISDICTION OVER THE CASES WHERE THE RETURNED INCO ME WAS ABOVE RS. 5 LACS AND SEARCH AND SEIZURE CASES, OTHERWISE ONLY I.T.O. WAS COMPETENT TO PASS 3 THE ASSESSMENT ORDER AND AS THE RETURN INCOME OF TH E ASSESSEE WAS NIL, THE ASSESSMENT ORDER OUGHT TO HAVE BEEN PASSED BY THE I TO AS THE SAME HAVING BEEN PASSED BY THE ACIT, IT WAS WITHOUT JURISDICTIO N. IT WAS FURTHER STATED THAT THERE WAS NO ORDER TRANSFERRING A CASE FROM THE ITO TO THE ACIT BY THE JCIT/CIT, THEREFORE, THE ASSESSMENT HAVING BEEN FRA MED WITHOUT JURISDICTION, OUGHT TO HAVE BEEN CANCELLED. 5. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE JURISDICTION OF THE ASSESSING OFF ICER WAS NEVER CHALLENGED DURING THE ASSESSMENT PROCEEDINGS AND THE ASSESSEE ATTENDED THE HEARING WITHOUT RAISING ANY OBJECTION OF THE JURISDICTION O F THE ASSESSING OFFICER, THEREFORE, THE ORDER PASSED BY THE ACIT WAS LEGAL A ND JUSTIFIED. NOW THE ASSESSEE IS IN APPEAL. 6. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ISSUE RELATING TO THE JURISDICTION WAS A LEGAL ISSUE AND CAN BE RAISED AT ANY TIME BECAUSE NO INVESTIGATION IS REQUIRED. THEREFORE, THE LD. CIT(A ) OUGHT TO HAVE ADJUDICATED THIS LEGAL ISSUE EVEN IF IT WAS NOT RAISED BEFORE T HE ASSESSING OFFICER. IT WAS ALSO STATED THAT A SIMILAR ISSUE HAS BEEN DECIDED V IDE ORDER DATED 27/4/2012 OF THIS BENCH OF THE TRIBUNAL IN C.O. NO. 48A/JU/2 007 ARISING OUT OF I.T.A. NO. 67/JU/2007 FOR THE ASSESSMENT YEAR 2003-04 IN THE C ASE OF CITY GARDEN, 4 GAGAN PATH, SRIGANGANAGAR VS. ITO, WARD-1, SRIGANGA NAGAR. COPY OF THE SAID ORDER WAS FURNISHED. 7. IN HIS RIVAL SUBMISSIONS, THE LEARNED D.R. SUPPO RTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DID NOT ADJUDICAT E THE ISSUE RELATING TO THE JURISDICTION AGITATED BY THE ASSESSEE FOR THE REASO N THAT THE SAME WAS NOT RAISED BEFORE THE ASSESSING OFFICER. IT IS WELL SET TLED THAT A LEGAL ISSUE CAN BE RAISED AT ANY STAGE IF NO FURTHER INVESTIGATION IS REQUIRED. IN THE INSTANT CASE, NO NEW DOCUMENT OR EVIDENCE WAS FURNISHED BY THE AS SESSEE AND ALL THE DETAILS WERE AVAILABLE ON THE RECORD, THEREFORE, TH E LD. CIT(A) WAS REQUIRED TO ADJUDICATE THIS LEGAL ISSUE AND WAS NOT JUSTIFIED I N DISMISSING THE SAME BY STATING THAT THE JURISDICTION OF THE ASSESSING OFFI CER WAS NEVER CHALLENGED DURING THE ASSESSMENT PROCEEDINGS. WE, THEREFORE, D EEM IT APPROPRIATE TO REMAND THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A ) TO BE ADJUDICATED IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THE LD. CIT(A) IS ALSO DIREC TED TO DECIDE THE ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND AND TO CONSIDER THE AFORESAID 5 ORDER DATED 27/04/2012 IN THE CASE OF CITY GARDEN, GAGANPATH, SRIGANGANAGAR VS. ITO, WARD-1, SRIGANGANAGAR. 9. IN I.T.A. NO. 399/JODH/2011 FOR A.Y. 2004-05, TH E FACTS ARE SIMILAR AS IN I.T.A. NO. 398/JODH/2011 FOR THE A.Y. 2003-04 (SUPR A), THEREFORE, OUR FINDINGS GIVEN IN FORMER PART OF THIS ORDER SHALL APPLY MUTA TIS MUTANDIS FOR THIS ASSESSMENT YEAR ALSO. 10. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 10/12/2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 10/12/2013 RANJAN* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.